Companies may exclude health care coverage for contraceptives if the policy is equally applied to men and women.

Do heatlh benefit plans that do not cover prescription, over-the-counter or surgical methods of contraception used by men or women unlawfully discriminate because of sex?

That was the situation courts were confronted with when female employees of Union Pacific Railroad asserted that the company’s health benefit plans, which excluded coverage of contraception, violated Title VII of the 1964 Civil Rights Act and the Pregnancy Discrimination Act of 1978.

Deciding an issue of first impression among the federal courts, the U.S. Court of Appeals for the 8th Circuit in St. Louis held that Union Pacific’s policy restricting coverage of contraception, unless medically necessary, was not sexually discriminatory because it restricts coverage of all contraception devices used by men and women.

The court reasoned that the exclusion was not discriminatory because the "health plans do not cover any contraception used by women such as birth control [pills], sponges, diaphragms, intrauterine devices or tubal ligations, or any contraception used by men, such as condoms and vasectomies."

According to the court, the Pregnancy Discrimination Act and legislative history do not mention contraception whatsoever, and contraception is not related to pregnancy in the ways indicated by the Pregnancy Discrimination Act. Further, the court reasoned that like infertility treatments, contraception is a treatment that is only used prior to pregnancy. In re: Union Pac. RR Employment Practices Litig., 8th Cir., No. 06-1706 (3/15/07).

Impact: Companies may exclude health care coverage for contraceptives if the policy is equally applied to men and women.